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Friday, October 29, 2004

Indiana Decisions - Three today from Court of Appeals

Kimberly Barclay, et al. v. State Auto Insurance Companies (10/29/04 IndCtApp)[Insurance]
SHARPNACK, Judge

Kimberly Barclay (“Kimberly”) and Andrew Newton appeal the trial court’s grant of summary judgment to State Auto Insurance Companies, f/k/a Meridian Mutual Insurance Company (“State Auto”). Kimberly and Newton raise one issue, which we restate as whether the trial court erred by finding that Kimberly’s insurance policy with State Auto did not provide coverage for her collision with Newton because Kimberly was driving her husband’s vehicle at the time of the collision. We reverse and remand. * * *

Here, Kimberly was “occupying” a vehicle which was owned by a “family member,” i.e. Kenneth. As a consequence, under the circumstances of this case, the Policy exclusion of liability coverage for the use of Kenneth’s automobile under B.3 of Kimberly’s Policy is subject to the exception that the exclusion of liability coverage does not apply to Kimberly while she was occupying Kenneth’s automobile. Because the exception to the exclusion B.3 applies, the Policy provides coverage to Kimberly for the collision. Consequently, the trial court erred by granting State Auto’s motion for summary judgment. See, e.g., Bosecker, 724 N.E.2d at 245 (holding that the insured was entitled to coverage and reversing the trial court’s grant of summary judgment to the insurer).

For the foregoing reasons, we reverse the trial court’s grant of summary judgment to State Auto and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and RILEY, J. concur

Pozzo Truck Center, Inc. v. Crown Beds, et al. (10/29/04 IndCtApp) [Civil Procedure]
MATHIAS, Judge
Pozzo Truck Center, Inc. (“Pozzo”) filed a complaint alleging breach of contract against Crown Beds, Inc. and Cathy Foster (“Crown”) in Lake Superior Court, Small Claims Division. The case was dismissed for lack of personal jurisdiction. Pozzo appeals arguing that the trial court erred when it determined that Crown did not have sufficient minimum contacts to establish jurisdiction in Indiana courts. Concluding that the trial court erred in its determination, we reverse. * * *

While the burden that Crown faces in defending itself in an Indiana court is heavier than the burden of defending against a suit filed in Missouri, that factor alone is not sufficient to defeat the existence of jurisdiction. See North Texas Steel, 679 N.E.2d at 519. Further, Crown’s inconvenience is outweighed by Pozzo’s interest in adjudicating the dispute in the forum where the damage was realized and Indiana’s interest in protecting its business owners from defective services. There do not appear to be more witnesses in Missouri than Indiana and it is not clear that there will be greater travel expenses or inconvenience for those involved in the litigation if the suit is tried in Indiana. Finally, it does not appear that any substantive social policies will be affected by the outcome of this controversy. For all these reasons, we find that asserting jurisdiction over Crown in Indiana comports with traditional notions of fair play and substantial justice.

Conclusion. The trial court erred by granting Crown’s motion to dismiss for lack of jurisdiction. Reversed.
BARNES, J., concurs.

CRONE, J., dissents with separate opinion:
In my view, the record before us establishes that even if Crown’s contacts with Indiana fall under the long-arm provisions of Trial Rule 4.4(A), the assertion of personal jurisdiction in this case offends due process. Accordingly, I respectfully dissent. * * *

Kevin Massey v. State of Indiana (10/29/04 IndCtApp) [Criminal Law & Procedure]
MAY, Judge
* * * Officer Crooke’s affidavit contained sufficient evidence to allow the magistrate to reasonably infer there was probable cause to justify the search, and the evidence supported Massey’s constructive possession of the cocaine and handguns. However, the trial court erred when it sentenced Massey to more than fifty-five years of imprisonment because his convictions arose from a single episode of criminal conduct, and we must remand for the trial court to sentence Massey in accordance with Ind. Code § 35-50-1-2. Affirmed in part and reversed and remanded in part.
VAIDIK, J., concurring in result.

SULLIVAN, J., concurring with separate opinion.
* * * I also concur that Massey’s possession of a handgun and possession of the large amount of cocaine involved in his Dealing Cocaine conviction arose out of the same criminal episode and that therefore, his consecutive sentences may not exceed fifty-five years. I write separately upon this issue however, to express my view that even if Ratliff v. State, 741 N.E.2d 424 (Ind. Ct. App. 2000), trans. denied, was correctly decided under the facts of that case, Ratliff is distinguishable. Nevertheless, my assessment of Indiana case law tells me Ratliff was wrongly decided. As Judge May’s lead opinion in this case notes, the crimes in Ratliff did not occur simultaneously. That fact, however, does not justify a conclusion to the effect that in order to have a single criminal episode all the crimes under analysis must have been committed simultaneously.

Posted by Marcia Oddi on October 29, 2004 01:52 PM
Posted to Indiana Decisions